What assets are subject to probate in Ontario

What Assets Are Subject To Probate

Almost all assets are subject to probate in Ontario; therefore, probate is required in most cases if the deceased has assets. However, there is no legal requirement or need to go through probate if there are no assets to probate.

Before applying for probate, you must list all assets subject to probate and calculate their net value as of the date of death to calculate estate administration tax or probate tax. Please speak to a lawyer before you take any further steps.

The following assets are subject to probate in Ontario?

Real Estate in Ontario
bank accounts (includes foreign banks), including all investment accounts.
Shares, bonds, trust units, options, mutual funds, TFSAs, RRSPs, RRIFs
vehicles such as cars, trucks, boats, motorcycles, trailers situated in or outside Ontario.
Goods or material.
Business property & interests.

The following assets are NOT subject to probate in Ontario.

Real Estate Property outside Ontario
Canada Pension Plan (CPP) death benefits
Assets that pass by beneficiary designation do not need to be probated, such as Jointly owned bank accounts, RRSPs, RRIFs, TFSAs with a named beneficiary other than ‘Estate’.
Insurance proceeds paid to a named beneficiary other than ‘Estate.’
Real estate where the title of the property is owned as “Joint Tenants.” You do not need probate to transfer the property. You need to file a Survivorship Application to transfer the real estate.
RESP is not required to be probated if both partners are joint subscribers of the plan, such as your spouse or common-law partner. If RESP is under a single subscriber’s name, then RESP would need to be probated. RESP is an asset which, until paid to the Beneficiary for school purposes, remains the asset of the estate.

What is Probate in Ontario?

Probate is a legal process where the court formally approves the Will as the last and valid Will of the deceased and confirms the authority of the person named in the Will as the estate trustee. If there is no Will, then by way of probate, the court appoints the estate trustee of an estate.

Upon completing the probate process, the court will issue a Certificate Appointment of Estate Trustee. Upon appointment, the estate trustee has the legal authority to deal with the deceased’s estate.

Supreme Court of Canada defined the purpose of probate in the case of Re Eurig Estate [1998] S.C.J. No. 72

” The purposes of probate is to certifiy that a will and codicils have been duly proved and registered in the court and that the administration of the property of the deceased has been committed by the court to the person named in the will as executor”

Do You Need to Probate if there are No Assets?

No. There is no legal requirement or need to go through the process of probate if there are no assets to probate.

Bank Account with Minimum Balance

Interestingly, we have found if there was a single bank account with a minimum balance, some banks may or may not be willing to transfer the funds. If the bank is willing to transfer funds, the bank would required suitable indemnities & Personal Guarantees along with original or notarial copy of the will.

It is a discretion of the bank to transfer funds without Probate. However, recent trend is that Banks would not be willing to transfer funds to another account without a probate Order or certificate of Appointment Estate Trustee. The concept of probate is court validating that the will in question is the actual last will and testament of the deceased, therefore if an Executor goes to the bank to transfer bank account the Bank Representative would not know if the Will presented at the Bank was the actual and Last Will & Testament of the Deceased. Hence Probate is mandatory if the deceased has any assets.

When is Probate Required

Depending on the complexity of assets, availibilty of a Will, and right of survivorship, probate may be required.

We have a detailed article on when probate is required. Click Below

Is it possible to avoid probate in Ontario?

It is pretty rare for estates in Ontario not to require probate, although it is possible to avoid probate with careful pre-death legal planning.

Probate Tax Calculator

Probate Tax, also known as an estate administration tax, is calculated based on the total value of a deceased person’s estate. Estate value below $50,000 Canadian is exempt from Estate administration Tax.

Please enter a valid amount.

How much are legal fees for probate

In Ontario probate lawyer’s fees range between $1,500 to $2,500 + Tax, for a simple uncontested Probate.

An hourly rate could be charged by a probate lawyer for contested probate applications.

What our probate lawyer can do for you?

Probate with a Will

Contested Probate

Probate without a Will

Whether you are looking to complete probate with or without a Will, or even contest probate, choose an experienced probate lawyer.

At shaikh law, we understand that every estate is unique. Therefore, our Law firm will ensure you are fully aware of all liabilities and assist with every aspect of paperwork relating to the probate and estate administration process.

Everything you need to know to probate

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